Citrigno v. Williams
Citrigno v. Williams
Opinion of the Court
This appeal raises issues as to the correctness of rulings by a referee in bankruptcy and a reviewing district judge regarding the disposition to be made of proceeds resulting from the sale by a trustee in bankruptcy of a spirituous liquor license.
In July, 1945, appellants, as lessors, entered into a written lease agreement with Anthony Pampalone and Joseph Cardona, as lessees (hereinafter referred to as “the original lessees”), whereunder appellants demised to the original lessees certain business premises
Notwithstanding the restriction in the lease against assignment, on June 8, 1953, the original lessees made a written agreement with Alfred P. Hall and Aline P. Woodhouse (hereinafter referred to as “the assignees”), whereby the original lessees assigned to the assignees all their right, title and interest in and to the lease and agreed to cause the liquor license to be transferred to the assignees. The agreement provided that the license should remain the property of appellants and, in that connection, that the license should be issued by the licensing authorities to a limited partnership composed of the assignees, as general partners, and the original lessees, as limited partners. The agreement recited that the creation of the limited partnership and the transfer of the liquor license into its name were provided for the specific purpose of accomplishing the retransfer of the license to appellants upon termination of the lease. The agreement bound the assignees to carry out all of the obligations promised in the lease to be performed by the original lessees, including the re-transfer of the license to appellants upon termination of the lease.
Concurrently with the execution of the agreement last mentioned, the assignees entered into another written agreement with the appellants whereunder: (1) appellants consented to the assignment of the lease to the assignees; (2) the assignees assumed and agreed to perform all obligations created and existing by reason of the lease; (3) the assignees recognized and acknowledged their obligation to cause retransfer of the liquor license to appellants upon termination of the lease; and (4) the release of the original lessees from any of their obligations under the lease was negatived and the assignees agreed to be and become jointly and severally liable with the original lessees for the performance of all covenants and obligations created by virtue of the lease.
Thereafter, as provided in the agreement between original lessees and the assignees, the liquor license was transferred to the limited partnership
On March 3, 1955, an involuntary petition in bankruptcy was filed in the court below against the limited partnership and Alfred P. Hall, individually. In due course, the partnership and Hall were adjudged bankrupts and appellee was appointed and qualified as trustee of their estates. Thereafter, appellee sought by petition
Following hearing of the petitions of the parties, the referee by order denied appellants’ petition in reclamation and authorized and directed appellee to administer upon the proceeds from the sale of the license, free and clear of any lien, claim, right, or interest of appellants. The referee based his order upon the ground that Section 7.3 of the California Alcoholic Beverage Control Act,
The prime question in the case is whether or not Section 7.3 of the Alcoholic Beverage Control Act
Appellants point out that the only language in Section 7.3 which is directly inhibitory is the first sentence, reading: “No licensee shall enter into any agreement wherein he pledges the transfer of his license as security for a loan or as security for the fulfillment of any agreement.” They argue, then, that the only thing forbidden by Section 7.3 is the “pledge” of a license either as security for a loan or as security for the fulfillment of an agreement. Consequently, they insist, since there was, in the strict sense, no “pledge” of the license by the parties, Section 7.3 is inapplicable. We cannot agree that Section 7.3 may be read so narrowly as appellants contend. Their strict rendering of its makes idle and meaningless the succeeding sentence of the section, which requires both trans-feror and transferee to submit to the licensing authority with the transfer application sworn statements specifically stating that the transfer application or proposed transfer is not made to satisfy
The matter of the impact of Section 7.3 upon lease agreements wherein the lessors transferred liquor licenses to the lessees with an agreement upon the part of the lessees to retransfer the licenses, has been before the California courts in a number of cases. Saso v. Furtado, supra; Etchart v. Pyles, supra; Pehau v. Stewart, 1952, 112 Cal.App.2d 90, 245 P.2d 692; Tognoli v. Taroli, 1954, 127 Cal.App.2d 426, 273 F.2d 914. In each case, the effective date of the lease was prior to the effective date of Section 7.3 and the court held the retransfer agreement valid because Section 7.3 was not retroactive. Significantly, however, in no case was it held or even suggested that Section 7.3 could not possibly be applicable to the retransfer agreement because no “pledge” of the license was involved.
This court, like other federal appellate courts, accords great weight to determinations made by trial judges upon the laws of the states wherein they sit. In reviewing doubtful questions of law, we will accept the considered views of the trial judge unless we are convinced of error. Santa Margarita Mutual Water Co. v. United States, 9 Cir., 1956, 235 F.2d 647, 654; Wallace v. Knapp-Monarch Co., 8 Cir., 1956, 234 F.2d 853, 857; Citizens Insurance Co. of N. J. v. Foxbilt, Inc., 8 Cir., 1955, 226 F.2d 641, 643, 53 A.L.R.2d 1376. We are not so convinced with regard to the district judge’s determination that Section 7.3 is applicable to the retransfer agreement involved here.
Appellants also urge upon us that even if Section 7.3 has application to lease agreements providing for the re-transfer of licenses to lessors, the lease here was entered into in 1945, long prior to both the passage and effective date of Section 7.3; and they assert that, accordingly, the California decisions denying retroactive effect to Section 7.3 (Saso v. Furtado, supra; Etchart v. Pyles, supra; Pehau v. Stewart, supra; Tognoli v. Taroli, supra), require reversal of the rulings of the referee and the district judge. But the claimed rights of appellants as against the assignees relating to the license do not have their source either in the original lease or in the purported assignment from the original lessees. The original lease expressly prohibited an assignment thereof. Appellants made a gesture of consenting to the purported assignment to the assignees but exacted for their consent, as new and additional terms of lease, a number of substantial obligations to be complied with by the assignees. We think the legal effect of the agreements made in June, 1953, involving appellants, the original lessees, and the assignees was the creation at that time of a new lease and a new tenancy between appellants and the assignees. Keeley v. Beenblossom, 1918, 183 Iowa 861, 167 N.W. 638; Walker v. Rednalloh Co., 1938, 299 Mass. 591, 13 N.E.2d 394, 397. We hold, therefore, that as between appellants and the assignees the right which appellants claim to a transfer of the license accrued and has its origin in contract between appellants and the assignees made after the effective date of Section 7.3; and we hold, further, that by reason of the provisions of Section 7.3 appellants’ claim to the license is unenforceable.
Appellants stress what they conceive to be the inequity of denying their ownership of a license for which they were paid no separate consideration by either the original lessees or the assignees. Perhaps it is a sufficient answer to point out that any loss they suffer results from their own violation of a public policy statute of California. We point out further, however, that the proceeds of the license will not go either to the original lessees or to the assignees, but to unsecured creditors of the assignees who, the referee found, extended credit in reliance upon the assignee’s ostensible ownership of the license.
Affirmed.
. The lease also included machinery, fixtures, implements, utensils, and other personal property then located on the demised premises and which had been theretofore used by appellants in operating the business of the Napoli Cafe.
. The license was transferred to and reissued in the names of Alfred P. Hall and Aline P. Woodhonse, as General Partners, and Ida L. Mengoln and Anthony Pampalone, as Limited Partners. The reason for the substitution of Ida L. Mengola as a Limited Partner in the place of Joseph Cardona, as provided in the agreement between the original lessees and the assignees, does not appear in the record.
. Prior to bis appointment as trustee, ap-pellee acted as receiver of the bankrupts and the petition for sale of the license was actually filed by him while he was receiver and in that capacity. However, upon his appointment as trustee he adopted the petition and prosecuted it as trustee.
. West’s Annotated California Codes, Business and Professions Code, Section 24076. At all times pertinent here, Section 7.3 read:
“No licensee shall enter into any agreement wherein he pledges the transfer of his license as security for a loan or as security for the fulfillment of any agreement. Each application for the transfer of a license must be accompanied by or contain a statement verified by both the transferor and transferee specifically stating that the transfer application or proposed transfer is not made to satisfy the payment of a loan or to fulfill an agreement entered into more than ninety (90) days preceding the day on which the transfer application is filed with the board or to gain or establish a preference to or for any creditor of the trans-feror or to defraud or injure any creditor of the transferor. This statement shall become part of the transfer application, and any misrepresentation contained in the statement shall be considered the misrepresentation of a material fact.”
. See footnote 4.
Reference
- Full Case Name
- Carmen CITRIGNO and Mary Citrigno v. Ralph E. WILLIAMS, Trustee of the Estate of The Blue Note, a limited partnership composed of Alfred P. Hall and Aline P. Woodhouse, General Partners and Ida L. Mengola and Anthony Pampalone, Limited Partners and Alfred P. Hall, Individually, Bankrupts
- Cited By
- 8 cases
- Status
- Published